22CA1686 Peo v Aragon 04-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1686 Arapahoe County District Court No. 21CR1998 Honorable Elizabeth Weishaupl, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
David Cristobal Aragon,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE JOHNSON Harris and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, David Cristobal Aragon (Aragon), appeals the
judgment of conviction entered on jury verdicts finding him guilty of
two counts of second degree assault. Aragon contends that (1) the
district court erred by failing to define “harm” in the jury
instruction for second degree assault, section 18–3–203(1)(h),
C.R.S. 2025; (2) there was insufficient evidence to support his
convictions; (3) his equal protection rights were violated because he
was convicted under a statute imposing a harsher penalty for
conduct that could have been subject to a less severe penalty; (4)
the court allowed the prosecutor to engage in prosecutorial
misconduct during voir dire; and (5) cumulative error requires
reversal.
¶2 We agree with Aragon that the district court erred by failing to
define the word “harm” for the jury and that the error was plain.
But we disagree with Aragon that there was insufficient evidence to
support his conviction based on the definition of “harm” enunciated
in Plemmons v. People, 2022 CO 45, ¶¶ 43, 52 (Plemmons II).
Therefore, although the jury instruction error compels us to reverse
Aragon’s judgment of conviction, the prosecutor is not barred by
double jeopardy to retry Aragon. And based on our disposition, we
1 need not address his remaining contentions. Accordingly, we
reverse the judgment of conviction and remand the case to the
district court for a new trial.
I. Background
¶3 In September 2021, Aragon’s ex-girlfriend — who had obtained
a protection order against him — unexpectedly arrived at the same
party he attended for one of his family members. The ex-girlfriend
called the police and Officer William Idler (Officer Idler) arrested
Aragon for allegedly violating that order. Aragon was placed in
handcuffs, but because of a recent surgery to his shoulder, one of
his arms was in a sling, so the officers handcuffed Aragon’s
uninjured arm behind his back, while the handcuff was placed
around the belt of the sling for his injured arm. This arrangement
permitted Aragon to have some movement of his arm in the sling.
¶4 Some of the later events were caught on the officers’ body-cam
videos. Once arrested, Aragon had several seizure-like episodes
where he was snorting and shaking at the scene and in the
ambulance that had been called by officers to transport Aragon to
the hospital. In the emergency room, Aragon was placed in a
separate patient room. Shortly after, Aragon told hospital staff that
2 he needed to defecate, but he was told to wait. Aragon defecated on
the floor of the room, and when a hospital staff member returned
and opened the door, Aragon ran out yelling that he had gone to the
bathroom and had “shit” all over himself.
¶5 Officer Glen Snow (Officer Snow) handcuffed Aragon and,
along with Officer Idler, began to lead him toward the hospital exit.
Aragon had another seizure-like episode and fell to the floor,
defecated again, pulled his pants down, wiped or threw feces toward
or on the officers, and continued to yell profanities at the officers
and hospital staff.
¶6 Aragon was charged with two counts of second degree assault,
two counts of third degree assault, and violation of a protection
order. The jury convicted him of two counts of second degree
assault in violation of section 18–3–203(1)(h) but acquitted him of
third degree assault in violation of section 18–3–204(1)(b), C.R.S.
2025, as to Officer Idler, and violation of a protection order. The
remaining third degree assault charge was dismissed by the
prosecutor.
3 II. Jury Instruction
¶7 Aragon contends that the district court erred by failing to
define the term “harm” for the jury either under People v. Plemmons,
2021 COA 10, ¶ 13 (Plemmons I) or Plemmons II, ¶¶ 43, 52. We
agree.
A. Waiver
¶8 The Attorney General contends that Aragon waived this
contention because the prosecutor, defense counsel, and the court
thoroughly reviewed the jury instructions, making edits and
additions, and Aragon did not specifically ask for a definition for the
word “harm” for second degree assault.
¶9 Waiver is the “intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of
Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). To find waiver,
“we must find that the defendant (or his counsel) knew of the right
before relinquishing it.” People v. Bott, 2019 COA 100, ¶ 20.
Because waiver “extinguishes error, and therefore appellate review,”
we indulge “every reasonable presumption against” it. Phillips v.
People, 2019 CO 72, ¶¶ 18, 22 (quoting Rediger, ¶¶ 39-40). If
waiver is not found, but the defendant failed “to timely assert a
4 right,” the claim is forfeited. Bott, ¶ 22. The difference between
waiver and forfeiture is that waiver requires intent, but forfeiture is
usually the result of neglect. Rediger, ¶ 40. While “waiver
extinguishes error,” we will review a forfeited error under the plain
error standard of review. Id.
¶ 10 We acknowledge that the parties’ counsel and the district
court in this case thoroughly reviewed the jury instructions. But
we must examine the record to determine whether counsel
impliedly waived the issue because “defense counsel considered
raising the unpreserved contentions before the trial court but then,
for a strategic or any other reason, discarded the idea.” Phillips,
¶ 22.
¶ 11 Here, nothing in the record suggests that Aragon’s counsel
considered requesting an instruction defining “harm” and made a
strategic decision not to. Because we must “indulge every
reasonable presumption against waiver,” we conclude that Aragon
did not waive this claim but that it was forfeited. Rediger, ¶ 39
(quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)). We thus
turn to whether the district court erred by not defining harm in
Aragon’s jury instruction.
5 B. Failure to Define Harm
¶ 12 Aragon contends that, because the jury was not instructed on
the definition of “harm,” the district court committed error. We
agree that Aragon was entitled to a definition of “harm.”
1. Standard of Review and Applicable Law
¶ 13 We review jury instructions de novo to ensure that the jury
was properly instructed on the governing law. People v. Payne,
2019 COA 167, ¶ 16. District courts have “discretion in
formulating jury instructions if ‘they are correct statements of the
law and fairly and adequately cover the issues presented.’” Id.
(quoting People v. Nerud, 2015 COA 27, ¶ 35). Accordingly, whether
a judge gives a particular jury instruction is reviewed for an abuse
of discretion. People v. Garcia, 2021 COA 80, ¶ 9. A district court
abuses its discretion if its “decision was manifestly arbitrary,
unreasonable, or unfair, or was based on an erroneous
understanding of the law.” Id.
¶ 14 It is undisputed that Aragon did not object to the jury
instructions lacking a definition of “harm”; therefore, his contention
is unpreserved. We review an unpreserved contention of error for
6 plain error. Hagos v. People, 2012 CO 63, ¶ 14. Plain error is error
that is obvious and substantial. Id.
¶ 15 Generally, an error is obvious when “the action challenged on
appeal . . . contravene[s] (1) a clear statutory command; (2) a well-
settled legal principle; or [3] Colorado case law.” People v. Pollard,
2013 COA 31M, ¶ 40 (internal quotations omitted).
¶ 16 Under the substantiality factor, we must determine whether
the error “so undermined the fundamental fairness of the trial itself
as to cast serious doubt on the reliability of the judgment of
conviction.” Hagos, ¶ 18 (quoting Wilson v. People, 743 P.2d 415,
420 (Colo. 1987)).
¶ 17 And when conducting plain error review, the supreme court
has instructed that we must apply the law at the time of trial, not
the law in effect on appeal. See People v. Crabtree, 2024 CO 40M,
¶¶ 55-57, 67.
2. Analysis
¶ 18 The Attorney General contends that the court did not err by
failing to define “harm” because Plemmons I did not mandate that a
court must define that term for the jury.
7 ¶ 19 In that case, a division of this court determined that the
statutory language for second degree assault in section
18-3-203(1)(h) was ambiguous. Plemons I, ¶ 22. That provision
says, as relevant here, that a person commits second degree assault
if “[w]ith the intent to infect, injure, or harm . . . a peace officer . . .
[he or] she causes such person to come into contact with . . . feces.”
Id. at ¶ 12 (emphasis added). The defendant in Plemmons I
contended that the evidence did not support a finding that she had
intended to injure or infect the officers when she spit on them, and
so the only other possibility was that she intended to harm the
officers. Id. at ¶ 13.
¶ 20 The division determined that the term “harm” was ambiguous
because it “could reasonably be interpreted in a number of different
ways, including, among other things, physical injury or emotional,
reputational, or financial damage.” Id. at ¶ 22. The district court
instructed the jury as follows:
The term “harm” as it is issued in Instruction No. 10 & 11 means psychological or emotional harm. It can include the following
1. Fear,
2. Anxiety,
8 3. Or any other type of significant distress
that is based upon the danger of injury or infection from contact with bodily fluids. The defendant need not have acted with the intent to cause harm that is permanent or long- lasting in nature, but the defendant’s intent must have been to cause psychological or emotional harm that is not fleeting or minimal in nature.
Id. at ¶ 42. The division concluded that the district court’s
interpretation of the word “harm” to mean psychological or
emotional harm was consistent with the legislative history, and
because the district court instructed the jury on that term, the
second degree assault statute was constitutional. Id. at ¶¶ 30-31.
¶ 21 Because Plemmons I held that section 18–3–203(1)(h) contains
an ambiguous word if “harm” is not defined, by implication the
division concluded, and we agree, that a court must define that
term to avoid a potentially constitutionally infirm statute upon
which a defendant is convicted. Id. at ¶¶ 22-23. But it was
precisely because the jury was instructed with a definition of
“harm” in Plemmons I that the division upheld the defendant’s
conviction. Id. at ¶¶ 43-48. Therefore, we conclude that the district
court erred by not defining the word “harm” and that the error was
9 obvious because Plemmons I was binding on the district court at the
time of Aragon’s trial.
¶ 22 We also conclude the error was substantial for three reasons.
¶ 23 First, Aragon did not have the benefit of any definition of
“harm.” As Plemmons I concluded, the district court in that case
had defined “harm” to include “only psychological or emotional
harm,” which was “both consistent with the General Assembly’s
intent and an appropriate way of ensuring the second degree
assault statute’s constitutionality.” Id. at ¶ 31.
¶ 24 Second, the Attorney General’s argument that the error was
not substantial because the jury was instructed that Aragon had to
intend to infect, injure, or harm — that awareness of his actions
was not sufficient — misses the point. Aragon does not argue that
he did not “intend” to throw or smear feces on the officers; instead,
he disputes that he did not form the requisite intent to infect,
injure, or harm them with his actions. Indeed, defense counsel
contended that he was showing the officers his feces to support that
he (1) needed to go to the bathroom, but hospital staff had not
permitted him to do so; (2) was sick; and (3) felt embarrassed that
10 he had gone to the bathroom in his pants. Therefore, the jury was
not instructed on the legally correct intent standard.
¶ 25 Finally, we acknowledge that Aragon might have been
convicted by the jury on a legally correct theory of liability because
the prosecutor relied on the three possible ways in which Aragon
could have completed the offense of section 18–3–203(1)(h). But we
cannot be sure that Aragon was not convicted by the jury under the
legally incorrect standard. See People v. Mendenhall, 2015 COA
107M, ¶ 45 (“[A] reviewing court may appropriately negate a verdict
where a defendant is convicted on a legally inadequate basis of
liability, even where the jury is instructed on more than one theory
of liability.”) (quoting People v. Mantos, 250 P.3d 586, 590-91 (Colo.
App. 2009))).
¶ 26 Thus, we conclude that the lack of a definition of “harm” in
Aragon’s jury instructions was plain error. As a result, we reverse
Aragon’s convictions. But because Aragon also raises an argument
that there was insufficient evidence to support his conviction, he
contends that he cannot be retried. We turn to this issue next.
11 III. Sufficiency of the Evidence
¶ 27 Aragon contends there was insufficient evidence to convict him
for second degree assault under the standard set forth in Plemmons
II.
A. Standard of Review and Applicable Law
¶ 28 We review a challenge to the sufficiency of evidence de novo to
determine whether the record contains sufficient evidence to
support a conviction. People v. McCoy, 2015 COA 76M, ¶ 37, aff’d,
2019 CO 44. To evaluate whether there is sufficient evidence to
support a conviction, we must determine “whether the relevant
evidence, both direct and circumstantial, when viewed as a whole
and in the light most favorable to the prosecution, is substantial
and sufficient to support a conclusion by a reasonable mind that
the defendant is guilty of the charge beyond a reasonable doubt.”
Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010) (quoting People v.
Bennett, 515 P.2d 466, 469 (Colo. 1973)). We must give the
prosecution “the benefit of every reasonable inference which may be
fairly drawn from the evidence.” Id. at 1292. If there is evidence
upon which one may infer an element of the crime, the evidence is
12 sufficient to sustain that element. People v. Grant, 174 P.3d 798,
811 (Colo. App. 2007).
B. Analysis
1. Plemmons II
¶ 29 We must look to whether there was sufficient evidence to
support Aragon’s conviction based on Plemmons II, which was
decided after Aragon’s trial but is the current law articulating the
standard for how “harm” should be defined in section
18-3-203(1)(h). See, e.g., People v. Martinez, 2024 COA 34, ¶¶ 47-
49 (reviewing a sufficiency of the evidence claim for second degree
assault, section 18–3–203(1)(h), under Plemmons II).
¶ 30 In Plemmons II, the supreme court made two points clarifying
the definition of “harm.” First, the “psychological or emotional
harm” caused by the defendant must not be “fleeting or minimal in
nature.” Plemmons II, ¶ 42 (quoting Plemmons I, ¶ 42). Instead, the
defendant must intend “to cause prolonged damage — whether
physical, psychological, emotional, or some combination of the
three — rather than temporary shock or minor discomfort.” Id. at
¶ 43 (emphasis added). Second, the “‘harm’ must flow from a
very particular form of significant distress; namely, the fear of
13 disease because of uninvited exposure to another’s bodily fluids.”
Id. at ¶ 45.
2. The Evidence Was Sufficient Under Plemmons II
¶ 31 At most, Aragon argues he was reckless, but that he did not
intend to harm the officers by causing them significant distress
because they feared they might be exposed to disease from the
invited exposure of his bodily fluids. We acknowledge that there is
no direct testimony from the officers indicating they worried about
getting a disease from Aragon’s feces. But we must look at the
evidence in the light most favorable to the prosecution, and a
defendant’s intent may be — and usually is — proved by
circumstantial evidence. See People v. Johnson, 2024 CO 32, ¶ 36
(“Direct evidence of an individual’s intent, such as an admission of
their purpose in performing the prohibited act, is rare;
consequently, ‘a defendant’s intent can, and often must, be proved
by circumstantial evidence.’”) (quoting People in Interest of J.O.,
2022 COA 65M, ¶ 20)).
¶ 32 Here, the evidence was sufficient because (1) Aragon indicated
he was not feeling well; (2) there was significant testimony about
the description of the feces being in liquid form and green; and
14 (3) there was a significant amount of feces at issue, and there were
many places Aragon spread the feces on the officers. All of these
reasons support our conclusion that there was sufficient evidence
to prove that Aragon intended to “harm” the officers by causing
prolonged damage — whether physical, psychological, or emotional
— due to the fear of disease because of uninvited exposure to
another’s bodily fluids.
¶ 33 As the officers led Aragon out of the hospital, he said, “I have
shit on myself” and “I have shit on my fucking hands,” and then put
his hand in the back of his pants, removed his hand, and said,
“look at this shit.” One officer testified that Aragon “collected” feces
in his hand, “swiping” it on and “flinging” it at the officers. While
the officers tried to control Aragon, he pulled down his pants and
defecated onto the floor in front of the officers. During the officers’
struggle to restrain Aragon, the videos show Aragon’s hand
touching the officers’ arms.
¶ 34 There was also evidence that Aragon was sick.
• While awaiting the ambulance, one of the officer’s body-cam
videos showed Aragon being held up by officers because he
was not steady, and Aragon said, “I don’t feel good.”
15 • Aragon then fell over and had his first seizure with officers
seen holding his head to prevent it from hitting the pavement.
• One of the officers asked Aragon if he took medications for
seizures and he said, “I do take meds, sir,” although we
acknowledge it is not clear that Aragon took medications for
seizures or something else.
• Shortly after the first seizure episode, Aragon said that he
needed to throw up and did so.
• When the ambulance arrived, Aragon had another seizure-like
episode.
• There was significant testimony about Aragon’s feces being
green, loose stool, in the form of diarrhea.
• A nurse testified that diarrhea can be caused by food
contamination, a virus, gastrointestinal distress, and
intoxication.
¶ 35 And there was evidence about the amount of feces and the
number of places Aragon touched or spread it on the officers.
• Officer Idler testified that, “[w]hile we . . . were trying to gain
control of [Aragon’s] hands, I felt him swipe with his right
hand up from my legs and then he touched my hat.”
16 • Officer Idler further testified that he “was able to smell feces;”
he was lucky to have on a disposable mask because it was the
height of the pandemic because Aragon got feces on the
officer’s hat; and that he had feces on his pants and chest.
• Officer Idler stated that, while Aragon was “collecting his feces
in his hand” and as the officers were trying to control Aragon’s
hands “he swipe[d] [feces] on . . . my partner.”
• Officer Snow testified that Aragon “end[ed] up swiping his
hand at me, which [wa]s covered in feces, and grasping at my
forearms which were also covered in feces.”
• Officer Snow further testified that he “had feces covering my
exposed forearms” and “portions on the front of my uniform.”
He also stated that he could smell the feces.
• Officer Snow testified that he put gloves on because Aragon
had pulled down his pants and that he had feces on his
exposed wrist, his forearm, and underneath his glove on his
hand.
• Another officer testified consistent with Officers Idler and
Snow that “both officers had feces on their arms, hands, on
their exterior ballistic vests. Officer Idler had it on his hat.”
17 • There was testimony from the nurse that she cleaned Aragon’s
feces off the officer’s “hat, their arms, and uniforms.”
¶ 36 The jury also viewed the body-cam videos, which corroborated
that Aragon had pulled down his pants, his buttocks were exposed,
the officers had feces on them, feces was visible on the floor of the
emergency room, and the feces was green and in liquid form.
¶ 37 Most importantly, the jury saw the body-cam video in which
Aragon was restrained on the hospital floor by the officers, and
Aragon said, “I won’t do it no more, I promise you, you got, I got you
good enough, I’ll stop, I’ll stop.” Although Aragon’s statement does
not explicitly state he intended to harm the officers, the jury could
infer that he was not simply being reckless but wanted to inflict
prolonged psychological or emotional harm by fear of disease from
contact with his feces. See Johnson, ¶ 36.
¶ 38 We acknowledge that the evidence that Aragon intended to
cause the officers “prolonged damage” was hardly overwhelming.
But the “question is not whether it is possible to disagree with the
inferences [drawn from the evidence], but rather, whether the
inferences are reasonable when the evidence is viewed as a whole in
the light most favorable to the prosecution.” People v. Perez, 2016
18 CO 12, ¶ 31. Here, although a reasonable jury could conclude that
Aragon was not intending to harm the officers, a reasonable jury
could also conclude that Aragon intended to cause “prolonged
damage” to the officers by instilling them with fear that they might
contract a disease from Aragon due to contact with Aragon’s feces.
See Clark, 232 P.3d at 1292.
IV. Conclusion
¶ 39 We reverse the judgment and remand the case to the district
court for a new trial.
JUDGE HARRIS and JUDGE SCHOCK concur.